[Federal Register Volume 62, Number 11 (Thursday, January 16, 1997)]
[Rules and Regulations]
[Pages 2305-2310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1043]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CO-001-0007; FRL-5669-5]
Clean Air Act Approval and Promulgation of Air Quality
Implementation Plan Revision for Colorado; Long-Term Strategy of State
Implementation Plan for Class I Visibility Protection, Part I: Hayden
Station Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a revision to the long-term strategy portion
of Colorado's State Implementation Plan (SIP) for Class I Visibility
Protection, contained in Section VI of the document entitled ``Long-
Term Strategy Review and Revision of Colorado's State Implementation
Plan for Class I Visibility Protection, Part I: Hayden Station
Requirements,'' as submitted by the Governor with a letter dated August
23, 1996. The revision incorporates into the SIP, among other things,
emissions reduction requirements for the Hayden Station (a coal-fired
steam generating plant located near the town of Hayden, Colorado) that
are based on a consent decree addressing numerous air pollution
violations at the plant. The SIP revision is expected to remedy Hayden
Station's contribution to visibility impairment in the Mt. Zirkel
Wilderness Area and, therefore, make reasonable progress toward the
Clean Air Act National visibility goal with respect to such
contribution. On October 3, 1996, EPA published a notice of proposed
rulemaking that proposed to approve this SIP revision and provided a
thirty-day period for public comment. EPA received one set of generally
supportive comments regarding the proposed revision, and is therefore
finalizing the proposal without modification.
EFFECTIVE DATE: This action is effective February 18, 1997.
ADDRESSES: Copies of the State's submittal and other information are
available for inspection during normal business hours at the following
locations: Air Program, Environmental Protection Agency, Region VIII,
999 18th Street, Suite 500, Denver, Colorado 80202-2405; Colorado
Department of Public Health and Environment, Air Pollution Control
Division, 4300 Cherry Creek Drive South, Denver, Colorado 80222-1530;
and The Air and Radiation Docket and Information Center, 401 M Street,
SW, Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper at (303) 312-6445.
SUPPLEMENTARY INFORMATION:
I. Background
Section 169A of the Clean Air Act (CAA or Act),1 42 U.S.C.
section 7491, establishes as a National goal the prevention of any
future, and the remedying of any existing, anthropogenic visibility
impairment in mandatory Class I Federal areas 2 (referred to
herein as the ``National goal'' or ``National visibility goal'').
Section 169A calls for EPA to, among other things, issue regulations to
assure reasonable progress toward meeting the National visibility goal,
including requiring each State with a mandatory Class I Federal area to
revise its State Implementation Plan (SIP) to contain such emission
limits, schedules of compliance and other measures as may be necessary
to make reasonable progress toward meeting the National goal. CAA
section 169A(b)(2). Section 110(a)(2)(J) of the CAA, 42 U.S.C. section
7410(a)(2)(J), similarly requires SIPs to meet the visibility
protection requirements of the CAA.
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\1\ The Clean Air Act is codified, as amended, in the U.S. Code
at 42 U.S.C. 7401 et seq.
\2\ Mandatory class I Federal areas include international parks,
national wilderness areas, and national memorial parks greater than
five thousand acres in size, and national parks greater than six
thousand acres in size, as described in section 162(a) (42 U.S.C.
7472(a)). Each mandatory Class I Federal area is the responsibility
of a ``Federal land manager'' (FLM), the Secretary of the department
with authority over such lands. See section 302(i) of the Act, 42
U.S.C. 7602(i).
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EPA promulgated regulations that require affected States to, among
other things, (1) coordinate development of SIPs with appropriate
Federal Land Managers (FLMs); (2) develop a program to assess and
remedy visibility impairment from new and existing sources; and (3)
develop a long-term (10-15 years) strategy to assure reasonable
progress toward the National visibility goal. See 45 FR 80084, December
2, 1980 (codified at 40 CFR 51.300-307). The regulations provide for
the remedying of visibility impairment that is reasonably attributable
to a single existing stationary facility or small group of existing
stationary facilities. These regulations require that the SIPs provide
for periodic review, and revision as appropriate, of the long-term
strategy not less frequently than every three years, that the review
process include consultation with the appropriate FLMs, and that the
State provide a report to the public and EPA that includes an
assessment of the State's progress
[[Page 2306]]
toward the National visibility goal. See 40 CFR 51.306(c).
On July 12, 1985 (50 FR 28544) and November 24, 1987 (52 FR 45132),
EPA disapproved the SIPs of states, including Colorado, that failed to
comply with the requirements of the provisions of 40 CFR 51.302
(visibility general plan requirements), 51.305 (visibility monitoring),
and 51.306 (visibility long-term strategy). EPA also incorporated
corresponding Federal plans and regulations into the SIPs of these
states pursuant to section 110(c)(1) of the CAA, 42 U.S.C. section
7410(c)(1).
The Governor of Colorado submitted a SIP revision for visibility
protection on December 21, 1987, which met the criteria of 40 CFR
51.302, 51.305, and 51.306 for general plan requirements, monitoring
strategy, and long-term strategies. EPA approved this SIP revision in
an August 12, 1988 Federal Register document (53 FR 30428), and this
revision replaced the Federal plans and regulations in the Colorado
Visibility SIP.
The Governor of Colorado submitted a subsequent SIP revision for
visibility protection with a letter dated November 18, 1992. This
revision was made to fulfill the requirements to periodically review
and, as appropriate, revise the long-term strategy for visibility
protection. EPA approved that long-term strategy revision on October
11, 1994 (59 FR 51376).3
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\3\ As a matter of clarification to EPA's October 11, 1994
action, please note that the September 1 due date referred to by EPA
as the reporting deadline for Colorado's long-term strategy three-
year reviews applies to the Colorado Air Pollution Control
Division's responsibility to provide its review, and revision as
appropriate, of the long-term strategy to the Colorado Air Quality
Control Commission, with a submittal to EPA made by November 1 of
each three-year cycle.
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Since Colorado's 1992 long-term strategy review, the U.S. Forest
Service (USFS) certified visibility impairment in Mt. Zirkel Wilderness
Area (MZWA) and named the Hayden and Craig Generating Stations in the
Yampa Valley of Northwest Colorado as suspected sources. The USFS is
the FLM for MZWA. This certification was issued on July 14, 1993.
Hayden Station, which is the focus of this SIP revision, is located
19 miles upwind from MZWA. The facility consists of two units as
follows: Unit 1 is a 180 megawatt steam generating unit completed in
1965 and Unit 2 is a 260 megawatt steam generating unit completed in
1976. The facility is currently uncontrolled for sulfur dioxide
(SO2) and nitrogen oxides (NOX) and operates electro-static
precipitators to control particulate pollution. The 1995 emissions
inventory for Hayden Station indicated that the plant emitted 16,000
tons of SO2 and 14,000 tons of NOX. Particulate emissions
have been more difficult to estimate due to control equipment
malfunction.
On August 18, 1993, the Sierra Club sued the owners of the Hayden
Station in United States District Court, alleging over 16,000
violations of the State's opacity standards and arguing that the
alleged violations resulted in a number of air quality impacts in MZWA.
On July 21, 1995, the Court found the Hayden Station owners liable for
over 19,000 violations of the opacity standards between 1988 and 1993.
See Sierra Club v. Public Service Company of Colorado, et al., 894 F.
Supp. 1455 (D. Colo. 1995). In October 1995, the Sierra Club, the
Colorado Air Pollution Control Division (APCD), and the Hayden Station
owners entered into negotiations to try to reach a ``global
settlement'' of the various issues facing the power plant. These issues
included the Sierra Club lawsuit and the USFS certification of
impairment in MZWA. In January 1996, EPA issued a Notice of Violation
(NOV) to the owners of the Hayden Station for continuing opacity
violations and joined in the settlement negotiations.
On May 22, 1996, the parties to the negotiations (EPA, Sierra Club,
State of Colorado, and the Hayden Station owners) filed a signed
Consent Decree with the United States District Court for the District
of Colorado, in Civil Action No. 93-B-1749. The United States published
notice of the settlement in the Federal Register and provided a thirty-
day public comment period. The United States responded to comments in a
motion to the Court to approve the Consent Decree. The Court approved
the Consent Decree on August 19, 1996. The Consent Decree resolves a
number of issues, including the Sierra Club and EPA enforcement
actions, and, as part of that resolution, requires substantial
reductions in air pollutants that are intended to resolve Hayden
Station's contribution to visibility impairment in MZWA. The Consent
Decree contemplates incorporation into the SIP of the visibility
protection-related requirements of the Consent Decree. The terms
``Hayden Consent Decree'' or ``Consent Decree'' are used herein to
refer to this judicially-enforceable settlement.
II. Revision Submitted August 23, 1996
With a letter dated August 23, 1996, the Governor of Colorado
submitted a revision to the long-term strategy portion of Colorado's
SIP for Visibility Protection; this revision is contained in Section VI
of the August 15, 1996 document entitled ``Long-Term Strategy Review
and Revision of Colorado's State Implementation Plan for Visibility
Protection, Part I: Hayden Station Requirements'' (referred to below as
``Long-Term Strategy Document''). The revision was made to fulfill,
with respect to Hayden Station's contribution to visibility impairment
in MZWA, the Federal and Colorado requirements to revise the long-term
strategy as appropriate following the three-year periodic review.4
The State reviewed the long-term strategy in light of the USFS's
certification of visibility impairment, the results of the Mt. Zirkel
Visibility Study 5 and other technical data, and the Hayden
Consent Decree. Based on this review, the State concluded that a
revision to the long-term strategy was necessary to remedy Hayden
Station's contribution to visibility impairment at MZWA and to ensure
reasonable progress toward the National visibility goal.
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\4\ The report resulting from this review was specific to Hayden
Station, and the State reviewed the components of the Long-Term
Strategy as they relate to Hayden Station only. According to a
November 14, 1996 letter from Margie Perkins, Colorado Air Pollution
Control Division, to Richard Long, EPA, the State intends to address
Colorado's remaining visibility issues in ``Part II'' of the long-
term strategy review and report, to be considered by the Colorado
Air Quality Control Commission (AQCC) at a public hearing in March
1997. The State had previously projected a December 1996 AQCC public
hearing on ``Part II,'' but found this schedule impossible to meet.
\5\ This collaborative study was spearheaded by the State to
collect additional information regarding visibility conditions in
the Mt. Zirkel Wilderness Area and to identify potential sources of
impairment. The final report is available at the addresses listed in
the beginning of this document. The study was completed on July 15,
1996.
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Only Part C of Section VI of the Long-Term Strategy Document
contains provisions that are enforceable against the Hayden Station
owners. Part C incorporates relevant portions of the Hayden Consent
Decree into the long-term strategy. The remainder of the SIP revision
contains provisions that are explanatory and analyses that are required
by section 169A of the CAA, Federal visibility regulations (40 CFR
51.300 to 51.307), and/or the Colorado Visibility SIP.
On October 3, 1996, EPA published a notice of proposed rulemaking
in the Federal Register (61 FR 51659) that proposed to approve the
revision to the long-term strategy portion of Colorado's SIP for
Visibility Protection that the Governor submitted on August 23, 1996.
EPA provided a thirty-day public comment period and received one set of
comments on the proposal. These comments and EPA's responses are
provided in section III. of this document.
[[Page 2307]]
A. Part C of Section VI: Provisions from the Hayden Consent Decree
The State incorporated into its Visibility SIP revision provisions
of the Hayden Consent Decree pertinent to visibility, including
Definitions, Emission Controls and Limitations, Continuous Emission
Monitors, Construction Schedule, Emission Limitation Compliance
Deadlines, and Reporting.6 Such provisions must be met by the
Hayden Station owners and are enforceable. The Consent Decree numbering
scheme was retained to avoid confusion between the SIP and the Consent
Decree, but only those sections pertinent to visibility, necessary to
ensure enforceability of the requirements related to visibility, and
necessary to assure reasonable progress in remedying Hayden Station's
contribution to visibility impairment at MZWA were adopted into the
SIP. Some changes were made to Consent Decree language to conform to a
SIP framework. Finally, changes were made to the force majeure
provisions of the Consent Decree to ensure that a demonstration of
reasonable progress could be made at this time. Provisions of
particular interest incorporated from the Hayden Consent Decree are
summarized below.7
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\6\ The Consent Decree also includes requirements for NOX
emission controls and limitations; however, since these controls and
limits do not have a direct relationship to visibility, they are not
being incorporated into this Visibility SIP revision nor will any
detailed discussion be provided. The NOX requirements were
included in the Consent Decree to address acid deposition concerns.
\7\ Pursuant to the provisions of the Hayden Consent Decree and
the SIP, the Hayden Station owners have elected to continue burning
coal at Hayden Station. Thus, although the Consent Decree and the
SIP contain provisions applicable to a switch to natural gas, the
summary contained herein only addresses Consent Decree requirements
applicable to coal combustion.
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SO2 Emission Limitations
As described below, the SO2 emission limitations will result
in at least an 82% reduction in SO2 from Hayden Station. The
Hayden Station owners must install a Lime Spray Dryer (LSD) system to
meet the emissions limitations. The following emissions limitations
apply:
--No more than 0.160 lbs SO2 per million Btu heat input on a 30
boiler operating day rolling average basis;
--No more than 0.130 lbs SO2 per million Btu heat input on a 90
boiler operating day rolling average basis;
--At least an 82% reduction of SO2 on a 30 boiler operating day
rolling average basis (to make sure that substantial reductions occur
and that control equipment is run optimally even if lower sulfur coal
is used); and
--A unit cannot operate for more than 72 consecutive hours without any
SO2 emissions reductions; that is, it must shut down if the
control equipment is not working at all for three days (to prevent the
build-up of SO2 emissions that may lead to visibility impairment
events).
Since SO2 is a chemical precursor to visibility-impairing
sulfate particles or aerosols, the State concluded that these SO2
emissions limitations will help remedy the facility's contribution to
visibility impairment in MZWA.
Particulate Emission Limitations
The Hayden Station owners must install and operate a Fabric Filter
Dust Collector (known as a baghouse or FFDC) on each unit. Particulate
emissions should be virtually eliminated. Particulate emission
limitations for each unit are:
--No more than 0.03 lbs of primary particulate matter per million Btu
heat input; and
--No more than 20.0% opacity, with certain limited exceptions, as
averaged over each separate 6-minute period within an hour as measured
by continuous opacity monitors.
Compliance with Emissions Limits
All required controls must be designed to meet enforceable emission
limits. Compliance with the SO2 and opacity emission limits shall
be determined by continuous emission monitors.
Schedule--Coal as Primary Fuel
The schedule for constructing control equipment is as follows:
Unit 1
--Commencement of physical, on-site construction of control
equipment by 6/30/97
--Commencement of start-up testing of FFDC and SO2 control
equipment by 12/31/98
Unit 2
--Commencement of physical, on-site construction of control
equipment by 6/30/98
--Commencement of start-up testing of FFDC and SO2 control
equipment by 12/31/99
The schedule for commencement of compliance with the emissions
limitations is as follows:
SO2
--For Unit 1, within 180 days after flue gas is passed through the
SO2 control equipment, or by July 1, 1999, whichever date is
earlier.
--For Unit 2, within 180 days after flue gas is passed through the
SO2 control equipment, or by July 1, 2000, whichever date is
earlier.
Particulates
--For Unit 1, within 90 days after flue gas is passed through the
FFDC control equipment, or by April 1, 1999, whichever date is earlier.
--For Unit 2, within 90 days after flue gas is passed through the
FFDC control equipment, or by April 1, 2000, whichever date is earlier.
These construction deadlines and emission limitation compliance
deadlines are subject to the ``force majeure'' provisions of the
Consent Decree, which are being included in this SIP revision. A force
majeure event refers to an excused delay in meeting construction
deadlines or in meeting emission limitation compliance deadlines due to
certain limited circumstances wholly beyond the control of the Hayden
Station owners.
To help ensure that reasonable progress continues to be made, the
State has committed to reopen the SIP (with public notice and hearing)
as soon as possible after it is determined that a construction schedule
or an emission limitation schedule has been, or will be, delayed by
more than 12 months as a result of a force majeure determination or
determinations. The State will re-evaluate the SIP at that time to
determine whether revisions are necessary to continue to demonstrate
reasonable progress. Necessary revisions may include the adoption of
new construction or compliance deadlines as necessary to ensure that
the emission limitations are met. In addition, the SIP also contains a
clarification that the force majeure provisions are not to be construed
to authorize or create any preemption or waiver of the requirements of
State or Federal air quality laws, or of the requirements contained in
the SIP or Consent Decree.
EPA believes that the language of the SIP should assure reasonable
progress toward the National visibility goal with respect to Hayden
Station's contribution to visibility impairment in the MZWA. In
general, if deadlines extend more than twelve months, EPA fully expects
the State to revise the SIP.
B. Remainder of SIP Revision
1. Analysis of Reasonable Progress
Congress established as a National goal ``the prevention of any
future, and the remedying of any existing'' anthropogenic visibility
impairment in mandatory Class I Federal areas. The statute does not
mandate that the national visibility goal be achieved by a specific
date but instead calls for ``reasonable progress'' toward the goal.
Section 169A(b)(2) of the CAA requires EPA to issue implementing
regulations requiring visibility SIPs to contain such
[[Page 2308]]
``emission limits, schedules of compliance and other measures as may be
necessary to make reasonable progress toward the National goal.''
EPA's implementing regulations provided for an initial round of
visibility SIP planning which included a long-term strategy to make
reasonable progress toward the National goal. See 40 CFR
51.302(c)(2)(I) and 51.306. The regulations also provide that the
affected FLM may certify to a State at any time that visibility
impairment exists in a mandatory Class I Federal area. See 40 CFR
51.302(c)(1). Recognizing the need to periodically evaluate the
effectiveness of the long-term strategy in protecting visibility, EPA
required States to review their long-term strategies at least every
three years. See 40 CFR 51.306(c). This requirement ensures that States
will periodically assess their visibility-related air quality planning
in light of a certification of impairment from the FLM, information
about visibility conditions and sources gathered from the visibility
monitoring requirements, or other relevant information. A central
aspect of the periodic assessment is to evaluate ``[a]dditional
measures, including the need for SIP revisions, that may be necessary
to assure reasonable progress toward the national goal.'' See 40 CFR
51.306(c)(4).
Section 169A(g)(1) of the CAA specifies factors that must be
considered in determining reasonable progress including: (1) the costs
of compliance; (2) the time necessary for compliance; (3) the energy
and non-air quality environmental impacts of compliance; and (4) the
remaining useful life of the source. Protection of visibility in a
mandatory Class I Federal area is the objective.
In this unique case, the Hayden Station owners have agreed in the
context of a judicially-enforceable Consent Decree to meet emissions
limitations that are expected to reduce Hayden Station's contribution
to visibility impairment in MZWA to below perceptible levels. The State
analyzed the emission reductions provided for in the Consent Decree in
light of the statutory factors for determining reasonable progress and
the ultimate objective of protecting visibility. The State concluded
that the measures assure reasonable progress by remedying Hayden
Station's contribution to perceptible visibility impairment in MZWA and
submitted a visibility SIP revision containing these measures.
Further, in a June 24, 1996 letter from Elizabeth Estill, USFS,
Rocky Mountain Region, to Margie Perkins, APCD, the USFS concluded that
the magnitude of the emission reductions for particulates and sulfur
oxides contained in the Consent Decree should effectively address the
USFS's concerns with visibility impairment in MZWA associated with the
Hayden Station. Based in part on this letter, the State concluded that
the pertinent provisions of the Hayden Consent Decree, as embodied in
the SIP revision, effectively resolve the USFS certification of
impairment in MZWA in relation to Hayden Station.
EPA has reviewed the State's SIP revision and supporting
information in light of the statutory and regulatory requirements and
is approving it. EPA believes the State has reasonably concluded that
the emission reduction measures at Hayden Station required in the
judicially-enforceable Consent Decree and contained in this visibility
SIP revision will remedy Hayden Station's contribution to perceptible
visibility impairment at MZWA 8, with reasonable costs, an
expeditious compliance schedule, and no significant adverse energy or
non-air quality environmental impacts. The State's August 15, 1996 SIP
revision and accompanying information, available at the addresses
listed at the beginning of this document, provide a detailed analysis
of each of the ``reasonable progress'' considerations. EPA's summary
and evaluation of the State's analysis can be found in EPA's October 3,
1996 notice of proposed rulemaking (see 61 FR 51662-51664).
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\8\ It should be noted that current Hayden Station emissions are
not expected to contribute to visibility impairment under all
meteorological conditions and that regional haze from outside
Colorado, emissions from sources outside Colorado, and emissions
from other Colorado sources could also be contributing to visibility
impairment in MZWA.
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2. Six Factors Considered in Developing the Long-Term Strategy
The State considered the six factors contained in 40 CFR 51.306(e)
when developing this revision to its long-term strategy. Please refer
to EPA's October 3, 1996 notice of proposed rulemaking for a discussion
of these six factors (see 61 FR 51664-51665).
C. Additional Requirements
The State met the requirements for FLM consultation prior to
adopting the SIP. The SIP also meets EPA requirements related to
enforceability. Please refer to EPA's October 3, 1996 notice of
proposed rulemaking for a discussion of these requirements (see 61 FR
51665).
III. Public Comments and EPA Responses
EPA received only one set of comments--from the Hayden Station
owners. A summary of their comments, and EPA's responses, are provided
below.
Comment: The Hayden Station owners indicate their strong support
for EPA's proposed approval of the August 23, 1996 revision of the
Colorado State Implementation Plan incorporating the requirements for
Hayden Station and urge EPA to act quickly in granting final approval
of the proposed rule.
Response: EPA notes the Hayden Station owners' support for the
proposed action.
Comment: The Hayden Station owners take issue with some of EPA's
statements in the discussion accompanying the proposed SIP revision.
Although the Hayden Station owners indicate these statements do not
impact the Hayden Station owners' support for the proposed rule, EPA is
providing responses to the Hayden Station owners' comments. The Hayden
Station owners made the following comments that fall in this category:
1. The Hayden Station owners take issue with EPA's statement in the
notice of proposed rulemaking that if a force majeure delay lasts more
than 12 months, EPA fully expects the State to revise the SIP. The
Hayden Station owners claim that EPA has misstated the necessary
consequences of a reopening of the SIP in the event that a force
majeure delay lasts more than 12 months, and that the State may take
action other than revising the SIP in response to a delay greater than
12 months.
Response: In making this statement in the notice of proposed
rulemaking, EPA was indicating its expectation that, in general, a
delay greater than 12 months will require a SIP revision to ensure
reasonable progress. EPA acknowledges that there may be situations--for
example, where the delay is not likely to last much longer than 12
months--in which a SIP revision may not be necessary.
2. The Hayden Station owners state that EPA has alleged that
malfunctions of existing opacity control equipment have caused primary
particulate matter plumes which have degraded visibility in the MZWA.
Although the Hayden Station owners do not object to the inclusion of
opacity and particulate matter standards in the SIP revision, they
state that they are unaware of any data that indicate that primary
particulate matter has caused any perceptible change in visibility in
the
[[Page 2309]]
MZWA. They further state that the MZWA visibility study confirms that
primary particulate matter is not a source of visibility impairment in
the MZWA.
Response: The Hayden Station owners have mischaracterized EPA's
statements in the notice of proposed rulemaking. In the relevant
section of the notice of proposed rulemaking, EPA summarizes
conclusions made by the State (see 61 FR 51663-51664). The State
indicates that particulate plumes may be a source of visibility
impairment in the MZWA. EPA agrees with this conclusion and believes
the MZWA visibility study supports it. Referring to an episode during
which a primary particulate plume emanated from the Hayden Station, the
study states, ``On one occasion in 1995, a clearly defined, coherent
plume from the Hayden generating station could be seen in a west-facing
video view from a camera on Storm Peak (which is south of the
Wilderness boundary). The plume was moving toward Storm Peak at nearly
the same elevation as the camera. The extent to which the plume reached
or rose over the Continental Divide could not be determined because it
could not be seen in views to the north. However, it is clear that the
potential existed for the plume to reach the Storm Peak area. This was
the only occasion when a clearly-defined, coherent generating station
plume was documented coming close to the Wilderness.'' This episode
shows that particulate plumes are capable of moving from Hayden Station
to a distance as far away as the Wilderness boundary. Under the right
meteorological and plant operating conditions, EPA believes it is
reasonable to expect that particulate plumes may occasionally impair
visibility within MZWA. Given the limited duration of the MZWA
visibility study and the relatively sparse monitoring network, EPA
believes it is unreasonable to conclude, as the Hayden Station owners
have suggested, that ``the MZWA visibility study confirms that primary
particulate matter is not a source of visibility impairment in the
MZWA.''
3. The Hayden Station owners assert that EPA's analysis of rate
impacts is oversimplified and probably inaccurate.
Response: In its notice of proposed rulemaking, EPA was summarizing
the State's analysis of the potential impact on rates, not performing
its own analysis (see 61 FR 51663). EPA believes the State's analysis
was adequate to estimate the potential costs of controls for purposes
of this action. Given that the calculation of rates is a complex
process, EPA does not assert that the ultimate impact on rates will be
exactly consistent with the State's analysis.
IV. Final Action
EPA has reviewed the adequacy of the State's revision to the long-
term strategy portion of Colorado's SIP for Class I Visibility
Protection, contained in Section VI of the August 15, 1996 document
entitled ``Long-Term Strategy Review and Revision of Colorado's SIP for
Class I Visibility Protection, Part I: Hayden Station Requirements,''
as submitted by the Governor with a letter dated August 23, 1996. EPA
is approving this revision, which includes the incorporation of certain
requirements from the Hayden Consent Decree. This SIP revision replaces
the previous existing impairment portion of the long-term strategy as
it relates to the MZWA.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
V. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-state relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66
(1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
General Accounting Office prior to publication of this rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the
[[Page 2310]]
appropriate circuit by March 17, 1997. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review must be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides.
Dated: December 10, 1996.
Kerrigan Clough,
Acting Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart G--Colorado
2. Section 52.320 is amended by adding paragraph (c)(79) to read as
follows:
Sec. 52.320 Identification of plan.
* * * * *
(c) * * *
(79) On August 23, 1996, the Governor of Colorado submitted a
revision to the long-term strategy portion of Colorado's State
Implementation Plan (SIP) for Class I Visibility Protection. The
revision was made to incorporate into the SIP, among other things,
emissions reduction requirements for the Hayden Station (a coal-fired
steam generating plant located near the town of Hayden, Colorado) that
are based on a consent decree addressing numerous air pollution
violations at the plant. This SIP revision replaces the previous
existing impairment portion of the long-term strategy as it relates to
the Mt. Zirkel Wilderness Area.
(i) Incorporation by reference.
(A) Long-Term Strategy Review and Revision of Colorado's State
Implementation Plan for Class I Visibility Protection Part I: Hayden
Station Requirements, as follows: Section VI., effective on August 15,
1996.
[FR Doc. 97-1043 Filed 1-15-97; 8:45 am]
BILLING CODE 6560-50-P
